Law - Of justice and fairness

By BHAG SINGH

There is need for a more equitable approach when dealing with squatters.

The notion of law and justice as perceived by a broad section of the public to be fair and just, is not always one and the same thing. As the public looks to the courts for justice, there are occasions when the former feels that justice has not been done.

Apart from the concept that “justice must not only be done but be seen to be done,” the role of the courts is usually limited to deciding based on the law as it exists, rather than in a general sense of the word “justice”.

As recently highlighted in the media, a person or his predecessors may have been occupying a piece of land without having made any application for the land or on the basis of a Temporary Occupation Licence (TOL).

There are also cases where such a person may have applied for the land to be alienated to him but this may not have been approved or the application may have been ignored or not attended to.

However, the time may come when such a person is told to vacate the land. This demand may come from an individual or a corporate entity that has the land alienated to them and now wants to develop the land.

Legal rights

Such a person will naturally feel aggrieved that someone has swept away the land from beneath his feet. How can this be so? However, this is what the law seems to allow for all its perfections and imperfections.

By reason of the National Land Code, the land vests in the state. A person only acquires any rights if the land is alienated to him. Such alienation is by way of a grant in perpetuity which would be equivalent to a freehold or a lease for whatever period of time.

On the other hand, a TOL is only an equivalent of permission to stay on the land as long as such permission is not withdrawn. A TOL, whenever granted, expires at the end of each year.

It is our law that rights are acquired pursuant to alienation of the land. Thus Section 340 provides that the title or interest of any person or body registered as proprietor of any land, or in whose name any lease, charge or easement is registered, shall subject to specific provisions be indefeasible.

It is because it is the state of the law that a person who is a squatter or a TOL holder will have no rights as against a person who has been able to secure a grant of the land from the state. By the same token, such a person will have no rights to any compensation on legal grounds.

Decision of the courts

When such disputes go before the court, invariably the court will decide that the squatter or TOL holder has no right as against the new registered owner. In most cases, the registered owner is likely to be a commercial entity.

Unjust as this may appear to be, the reason is that the ordinary individual and the courts rely on different meanings. The Oxford Advanced Leaner’s Dictionary gives two meanings for the word justice: “the fair treatment of people” or “laws based on principles of justice”.

Though laws are based on the principles of ensuring fair treatment of people, economic conditions, social circumstances and other broader considerations of public interest, when enacted such laws can give rise to unfair consequences in specific situations.

There are occasions when a judge may feel that a decision is unfair in a given scenario. However, he has a duty to make the decision according to what has been provided for by the law.

That the court only applies the rules is a principle of universal application. In Lawyer’s Lawyer by William Harbaugh, the author describes a conversation between one Mr Hand and the well-known Justice Holmes in the following words:

“Once in the 1920s, Hand closed a talk with Holmes by saying, with mischievous intent: ‘Goodbye Mr Justice, now go and do justice!’ Holmes, who was leaving, turned around and said: ‘What’s that you said?’ Hand repeated the remark. Holmes retorted: ‘You know better than to say a thing like that. All we do is apply the rules of the game.’ ”

As said by the famous jurist and author Goodhart JL, there is something to be said of the view that justice should not only be seen to be done to the individual but also that it should be done to the community as a whole. It is not done when a guilty man is given an opportunity to continue his depredations owing to a technical slip.

Grievances

Our laws relating to land administration provide a useful system to ensure security of ownership and tenure. But then dishonest acts and intention by unscrupulous persons, whether within or outside the administrative machinery, have led to grievances and resentment.

When a person has occupied land and improved it in different ways and made it more valuable, it would on all accounts be unfair and unjust, outside the meaning of the National Land Code.

It is even more obnoxious in the context of a caring society, when those involved in the deprivation are persons who are working in collaboration with those entrusted to administer the land law.

Despite the indefeasibility principle, there is nothing to prevent those who administer the land before alienating it, to investigate whether there are occupants on the land, how long they have been there and how they have contributed to the enhancement in land value.

In appropriate cases, the land authority could give an opportunity to the occupiers to voice their plight and highlight their contribution, and then impose a condition for reasonable compensation to be paid within a certain period in respect of a fair sum.

The attitude of the authorities in most cases is to alienate the land by closing their eyes and then falling back on the provisions of the Code to justify their actions. Even if not deliberate, it is a gross neglect of their responsibility on the basis of good conscience.

However, as history shows, such fairness has seldom existed and good conscience rarely reflected and relied upon. It may be time for the government to legislate for such procedures to be incorporated to ensure a better level of fairness and justice to the ordinary individual.

- THE STAR